July 2, 2003

Ready to fight back?

Sign up for Take Action Now and we’ll send you three meaningful actions every Tuesday.

Thank you for signing up. For more from The Nation, check out our latest issue.

Subscribe now for as little as $2 a month!

Support Progressive Journalism

The Nation is reader supported: Chip in $10 or more to help us continue to write about the issues that matter.

Fight Back!

Sign up for Take Action Now and we’ll send you three meaningful actions you can each week.

Travel With The Nation

Be the first to hear about Nation Travels destinations, and explore the world with kindred spirits.

Sign up for our Wine Club today.

Did you know you can support The Nation by drinking wine?

The Supreme Court’s sweeping June 26 ruling in Lawrence v. Texas came almost seventeen years to the day after one of the darkest moments in the history of the gay movement. The Court’s 5-to-4 decision, in 1986, on Bowers v. Hardwick was so rife with homophobic invective–effectively naming sodomy as the criminal act that defines a criminal class of people–that it galvanized a generation of activists who saw reversing Bowers as the keystone of a gay rights agenda.

So it was with a righteous sense of historical justice that gay people took to the streets in pride parades to celebrate the Court’s repudiation of Bowers. This decision was as much a movement victory as a legal one. Rather than making the narrow equal-protection argument that most expected, the Court issued a striking affirmation of gay people’s citizenship, a wholesale rejection of Bowers, a confirmation of privacy rights as enumerated by reproductive rights law and, just as important, an elaboration of sexual rights under the Constitution that could protect sexual dissidents of all stripes. This far-reaching precedent was made possible by countless political struggles–feminism, gay liberation, the AIDS movement, queer activism–against discrimination and state encroachment on what Justice Anthony Kennedy called the “spatial and more transcendent dimensions” of personal liberty.

Now, the morning after, gay activists are salivating over the prospect of using Lawrence to overturn “don’t ask, don’t tell,” endorse gay parental rights and sanction gay marriage. But if that’s what Lawrence accomplishes, it will be an unnecessary abbreviation of its most radical possibilities.

The Court’s decision in Lawrence did not just, as Paula Ettelbrick of the International Gay and Lesbian Human Rights Commission declared to the New York Times, “put gay people in the mainstream of society for the first time,” endorsing them “almost as families, that [are] not seedy or marginal but very much a part of society.” It went much further. It carved out a zone of sexual freedom from states’ efforts to “define the meaning of the [sexual] relationship or to set its boundaries absent injury.” Indeed, while the Court expressed reservation about recognizing gay marriage, it forcefully rejected morality as a basis for state regulation of sexuality. Citing Planned Parenthood of Southeastern Pa. v. Casey, Kennedy argued that despite the majority’s “profound and deep convictions accepted as ethical and moral principles,” the law’s obligation is to “define the liberty of all, not to mandate its own moral code.” As such, Lawrence ought to be read as protecting all consensual, private sexual relations, not just those that resemble heterosexual, procreative marriage but those that are “seedy or marginal.”

Two aspects of Kennedy’s opinion should embolden such an inclusive interpretation. First is his extensive citation of gay and lesbian scholarship that advances an anti-identitarian view of sexuality. Such writings hold that sexual identity is a relatively recent historical phenomenon of the past 100 years or so and places laws that target gays and lesbians, like the Texas “homosexual conduct” law, within a much longer history of attempts to regulate sex acts in general. Many of these laws–like those that prohibit masturbation, public lewdness, adultery and fornication–are still on the books and make no distinction between gay and straight offenders. It’s against these laws that the precedent in Lawrence can be applied, which is what provoked Justice Antonin Scalia’s hysterical dissent. Second, Kennedy invoked international sexual rights law, used by other countries and international courts to protect those most vulnerable to sexual regulation and coercion–most notably, sex workers and HIV-positive people whose private, consensual sexual relations are under widespread assault.

Of course, none of these sexual rights are guaranteed by Lawrence itself. Their realization will require diligent and visionary legal activism and political organizing. Scalia’s dissent was right in one respect: There is indeed a “culture war” brewing over “social perceptions of sexual and other morality.” And although some future skirmishes will undoubtedly be fought in the courts–already law-enforcement officials in Texas and Idaho have announced their intent to prosecute homosexual sex under a variety of other laws–let’s not forget where this war’s ground zero is. It’s in bedrooms and in streets, in bars and parking lots. It’s in these spaces, both private and public, that we find people diversely engaged in the pursuit of sexual liberation, something that Lawrence‘s affirmation of sexual liberty protects, but does not, in and of itself, enact.